Mollencamp v. Farr

• Decision Date: 11 February 1905
• Docket Number: 13,952
• Citation: 79 P. 646,70 Kan. 786
• Parties: LOUIS MOLLENCAMP et al. v. CARRIE FARR et al
• Court: Kansas Supreme Court

79 P. 646

70 Kan. 786

LOUIS MOLLENCAMP et al. v. CARRIE FARR et al

No. 13,952

Supreme Court of Kansas

February 11, 1905

Decided January, 1905.

Error from Lincoln district court; ROLLIN R. REES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DESCENTS AND DISTRIBUTIONS--Will Construed. A testator whose family consisted of a wife and six minor children, two sons and four daughters, devised a farm which comprised substantially all his estate to his widow for her life, and added: "I desire that the farm at her death should go to my two sons, Louis and George; providing . . . that they pay over whatever difference there may be in the appraisement or allotment made by their mother for the benefit of my other children, said allotment to be made at the discretion of my wife." Held, that under the circumstances of this case the requirement of this proviso formed a condition precedent, and no title could pass to the sons under the clause quoted without an appraisement or allotment's having been made by the mother.

David Ritchie, and F. H. Dunham, for plaintiffs in error.

Z. C Millikin, H. W. Rahmeier, and George D. Abel, for defendants in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

This proceeding involves the construction of the will of George Mollenkamp, who died March 22, 1888, owning personal property valued at $ 635 and a farm worth about $ 2500, subject to a mortgage for $ 600. He was survived by his widow, two sons, aged respectively twelve and eleven years, and four daughters, one aged seventeen years, the others all younger than the sons. His will was drawn by a neighbor unversed in the law, and reads as follows:

"I, George Mollenkamp, of the county of Lincoln, state of Kansas, being of sound mind and memory, do make and publish this my last will and testament, in manner and form following, that is to say:

"First: I give, devise and bequeath to each of my children the sum of $ 25 (twenty-five dollars) to be paid to each on their respective twenty-first birthdays, said moneys to be paid from the proceeds of the farm.

"Second: I give, devise and bequeath to my beloved wife, Catharina Adelpheia Mollenkamp, the farm on which she now resides, to have and to hold during her natural life, for the benefit of self and family. I desire that the farm at her death should go to my two sons, Louis and George, providing that they have been obedient and kind to their mother and sisters, and displayed energy in developing the best resources of the farm, and providing also that they pay over whatever difference there may be in the appraisement or allotment made by their mother for the benefit of my other children, said allotment to be made at the discretion of my wife.

"And last, I hereby constitute and appoint my said wife, Catharina Adelpheia Mollenkamp, to be the executrix of this my last will and testament.

"In witness whereof, I have hereunto set my hand, this 5th day of March, A. D. 1888."

The will was duly probated and the widow elected to accept its provisions. She died June 7, 1889, without having taken any action under the clause relating to appraisement and allotment. A guardian for the minor children was appointed, who took charge of, and managed, the farm for the benefit of all the children for some years, paying off the mortgage from its proceeds. In 1897 he leased it to George, who at the time bought of him certain personal property of the estate, paying therefor $ 450, which was divided equally among the children. In 1902 the four daughters brought an action for partition, claiming that each child owned an undivided one-sixth of the farm. The two sons answered, asserting title to the whole of it under the terms of the will. The trial court sustained the claim of the plaintiffs, and the defendants, Louis and George Mollenkamp, prosecute error.

In support of the judgment rendered it is suggested that the portion of the will relating to the farm's going to the sons upon the death of their mother should be treated as a mere recommendation and not as an imperative direction, since it employs the phrase "I desire," in apparent contrast with the twice-repeated expression "I give and bequeath." Whether in any given case words of a will precatory in form are to be interpreted as mandatory in effect depends upon the true intent of the testator, to be arrived at by consideration of the context, and, perhaps, of the attending circumstances. Here we shall assume that the doubtful term should not be literally construed, but should have the force of a command, although there is room for a plausible argument to the contrary. The inquiry, then, is whether the will imposed upon the ...